Category: DIVORCE

‘No fault’ divorce law: What’s changed?           

‘No fault’ divorce comes into effect today and is being hailed as the biggest shift in the divorce law in half a century.

But what exactly has changed and how will the experience differ for separating partners?

This development ends the requirement for the divorcing partner to prove their marriage has broken down based on one of five facts – adultery, behaviour, two years separation (with their spouse’s consent), five years separation (without consent) and desertion.

Instead, only a statement of irretrievable breakdown will be needed.

It’s this change, removing the need for one party to be ‘blamed’ for the marriage break down, that has brought forward the term ‘no fault’ divorce.

Campaigners hope that taking blame out of the legal process will also remove some of the acrimony and conflict and shift the focus away from what went wrong, to what’s needed for the future.

Six months to final order

The new process will take six months before the separating couple can obtain a final divorce order. There’s a minimum 20 weeks between the start of proceedings and application for a conditional order. This provides couples with a meaningful period of reflection and the chance to reconsider. They then will have to wait a further six weeks before applying for a final order.

Another change the Divorce, Dissolution and Separation Act 2020 brings is more modern terminology. The person applying for the divorce will be called the applicant, instead of the petitioner. The decree nisi becomes the conditional order and the decree absolute will be the final order.

It will no longer be possible to contest a divorce, except on very limited grounds (such as whether the court has jurisdiction to conduct the proceedings).

Also under the April 6 change, both parties can jointly file for divorce, rather than solely one partner.

The new law is anticipated to remove some of the negativity and blame associated with divorce. However, it cannot take away the often tricky process of agreeing a divorce settlement between partners. The separating couple will still need to decide how to divide assets like the family home, savings and pensions. And, of course, making parenting arrangements for any children.

The new system is a change for everyone. Our advice remains that anyone thinking about ending their marriage should educate themselves about all potential possibilities, hurdles and outcomes. Seeking legal guidance at the earliest opportunity puts you in the strongest position to make those educated decisions.

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Not reading too much into divorce rate drop

Commentators and newspaper columnists have done their best to divine insight from the recently announced drop in divorce figures.

The truth is that, while the numbers are interesting, reading any long-term trends into them is much harder.

In 2020, there were 103,592 divorces granted in England and Wales, a decrease of 4.5% compared with 2019. That fall seems to have surprised many who thought that the many stresses of the pandemic, including that first lockdown in March and the months of uncertainty that followed, would drive up the numbers.

The reality is most relationships finished off by Covid would have struggled to reach a decree absolute by the end of that year. The ‘average’ divorce takes something like four to six months and the courts themselves were hit by restrictions and lockdown.

Only after we’ve seen the picture for the succeeding years may we gain a clearer understanding of what impact Covid has had on couples taking action to end their relationships. Even then there will be other factors that have to be taken into consideration.

The numbers released by the Office for National Statistics for 2020 included:
  • The majority of divorces were among opposite-sex couples, 98.9%.
  • There were 1,154 divorces among same-sex couples, increasing by 40.4% from 2019; of these, the majority continued to be accounted for by female same-sex divorces 71.3%.
  • Unreasonable behaviour was the most common reason for wives petitioning for divorce among opposite-sex couples, accounting for 47.4% of petitions.
  • For husbands, the most common reason for divorces was a two-year separation. This accounted for 34.7% of divorces followed by 33.8% for unreasonable behaviour.
  • For same-sex divorces, unreasonable behaviour was the most common reason for divorce in 2020 for both female and male couples. Unreasonable behaviour accounted for 55.2% of female divorces and 57.0% of male divorces.
  • The average (median) duration of marriage was 11.9 years for opposite-sex couples, a decrease from 12.4 years in 2019.
  • For same-sex divorces in 2020, the average (median) duration of marriage was 4.7 years for female couples and 5.4 years for male couples. (Divorce among same-sex couples has only been possible since 2015 following the introduction of same-sex marriages in March 2014.)
No fault divorce

Currently in England and Wales, those wishing to divorce need to prove the marriage has broken down and cannot be saved. This can be on the grounds of adultery, unreasonable behaviour, desertion, separation for two years (with partner’s consent to divorce) or separation for five years (without partner’s consent).

That’s all set to change from April 6, when so-called no-fault divorce is introduced. This will allow the dissolution of a marriage without the need to show wrongdoing by either party.

(Commentators have also surmised this may have played a part in 2020’s divorce rate drop. Separating couples who did not want to have to prove fault may have waited for the legislation to come in. It had been set for introduction in autumn 2021 but was delayed.)

We wait to see how exactly the new system works. Our advice would always be to seek professional legal advice at the earliest opportunity if thinking about divorce or separation.

It is always important to be aware of all the options and implications. That way informed decisions can be taken about important matters such as family, finances and relationships.

Divorce figures show ‘pent up need’

The return of schools to face-to-face lessons on March 8 is the first step in England re-opening after the third lockdown.

It’s a welcome sign that we are making progress in the fight against coronavirus. And, if all goes to plan, more restrictions will be lifted as we move through spring and summer.

The strain placed on families and individuals by the virus and the response to counter it has been immense. Never in peacetime has there been such a hammer blow to our ability to earn a living, go about our daily lives and interact with those around us.

Sadly, we know that for too many people, the restrictions of lockdown have exacerbated existing issues in some households.

Experience tells us that in those relationships already under pressure, intense periods of time spent together – such as summer holidays or at Christmas – can be the final straw. The removal of a regular routine, where work, family and social commitments occupy large chunks of time, can magnify the cracks in a relationship.

Living together in lockdown over several months can be far harder – with the added weight of health, family or financial concerns.

Spike in divorce applications

The latest figures on divorce applications give some glimpse as to what may have happened in those relationships during the last year.

Between April and July, divorce applications increased by 93% but dipped in August to below 2019 levels. The Legal Services Board, which monitor these figures, said this summer peak may ‘indicate a reticence to issue proceedings during the first national lockdown with a subsequent spike showing that pent-up need’.

This suggests that some people resolved to make a change in their relationships just as soon as they were able.

There’s no disputing that Covid-19 has given us a jolt. The last 12 months have led to many people reassessing aspects of their life and making changes that otherwise may not have been the case.

There will be those who will consider whether a fresh start is what’s required as we slowly head out of lockdown.

Our advice to those taking this step is to seek professional legal advice at the earliest opportunity. It does not commit you to any action, but it makes complete sense to understand what options and implications are involved.

Divorce or the ending of a civil partnership are decisions that have wide ranging implications for all aspects of your life. It is not a step that anyone takes lightly.

Taking on board the expertise and experience of people who ‘know the road’ can stop damaging decisions being taken that you may come to regret.

We’ve written previously about divorce during the pandemic.

Family lawyers praised for commitment during Covid

Family lawyers have been praised for their commitment to the families they serve by one of the country’s most senior legal figures.

Sir Andrew McFarlane, President of the Family Division and Head of Family Justice, said he was proud of the way that all those involved had stepped up to carry on working since the lockdown in March.

He told a conference that those working in Family Law had realised from the start they had to ‘crack on’ and deliver as much as they could in terms of justice.

He said: “There has been, from day one, a can-do mentality as people have begun to cope with a lot of this unknown and working from home.

“I genuinely think that family lawyers, all of them, can hold their heads high looking back at what they’ve achieved in the last six months.

“Family pressed ahead and achieved a surprising penetration into the volume of cases.

“We’re in a position now where some of the courts haven’t got a backlog of cases, others have but they’ve a plan for dealing with them, and people are just cracking on and getting through the work.”

Proud of Family Lawyers

Sir Andrew also revealed to the virtual audience of the Future of Family Practice Conference: “We are sitting and have sat more days in Family than ever before, despite the fact we haven’t had courtrooms. And you’ve all turned up and serviced the process in the ways you always do, to the best of your abilities.

“I am proud of the way Family has functioned in this difficult time. My gratitude to everyone who, on a daily basis, has gone the extra mile, is profound.

“It’s not just the lawyers, or the judges, it’s the court staff – it has been really difficult for them.  Everyone has been in it together.”

family lawyers

He acknowledged that many in the profession were feeling fatigued and urged people to look after their own well-being and that of colleagues.

But he added: “We are going to carry on, carrying on, working as we are. But that comes at a price.

“It is one thing to have got through the first peak of Covid and bob up in the summer as we did and begin to have more court hearings. But then to turn the corner and find there’s another six months or more to go is very dispiriting.”

Face-to-face hearings vital

Sir Andrew said there had been benefits from the Covid lockdown, but he also stressed the return of face-to-face hearings was vital for society.

He said: “Some of the remote working has caused us to accelerate by years our ability to work digitally and I think that will stay with us.

“But I am clear that I will fight any suggestion by those responsible for funds that this is the way we should be doing Family Law for the future anyway. It is absolutely not.

“There will be a few cases, case management hearings, which will be sensibly dealt with remotely. But any hearing that involves the family engaged directly with the judge or magistrates we must get back to having those hearings face-to-face in a courtroom as soon as we can.”

Sir Andrew said the system was moving away from paper working and the digital reform programme was continuing. He said digital consent orders were being turned round in a week or so rather than four or five months which was a feature of the Divorce Centres.

Courts are also moving to a digital process for the issuing of care proceedings across the country.

Divorce law change one step closer

A law change to bring in ‘no fault’ divorce has moved a step closer.

MPs this week approved the bill at its second reading in the House of Commons. It will now undergo further scrutiny from a committee of MPs before being considered by peers in the House of Lords.

The Divorce, Dissolution and Separation Bill removes the need to find fault in order to start proceedings in England and Wales.

Justice Secretary David Gauke told the Commons that at present couples could not separate “if they have grown apart” unless they have the means to live apart for two years.

Rise in divorce rate

He also said a change in the law would help in situations where there was one abusive partner, but the other did not want to raise these issues in court for fear of the relationship further deteriorating.

What you need to know about divorce law changes

Mr Gauke said a rise in the divorce rate once the law was changed was inevitable because people have been holding off their separation, waiting for a legal change.

“So, the likelihood is there will be an increase because of that waiting list,” he said.

He added evidence from other countries suggested “once that initial spike has been dealt with… the divorce rate is unlikely to increase and it is likely to remain much the same.”

Mr Gauke added: “The Bill responds constructively to the keenly felt experience of people’s real lives. This is a Bill for anyone who agrees that the end of a relationship should be a time of reflection, and not of manufactured conflict.”

The proposed changes follow the Supreme Court’s rejection of a woman’s appeal for divorce after her husband refused to agree.

Tini Owens wanted to divorce her husband of 40 years, on the grounds that she was unhappy with his behaviour. But her husband Hugh refused to agree to it and the Supreme Court unanimously rejected her appeal. It meant the couple must remain married until 2020.

No fault? Not always

MP Fiona Bruce was concerned that the removal of fault, without any opportunity to challenge, would mean that some who are genuinely wronged cannot put anything on record on what they feel about the reasons for the divorce.

Removal of fault sends out a signal

She said: “Sadly, I believe it will make divorce easier…because it will allow one party to walk away from the most important commitment they are likely to have made in their lifetime, without giving any reason at all and without their spouse being able meaningfully to object to their decision to do so.

“The removal of fault sends out a signal. I am particularly concerned about the signals sent out by the Bill to young people – that marriage can be unilaterally exited, on notice, by one party, with little if any recourse available to the party who has been left.

“I fear it signals that marriage need no longer be entered into with the intention of its being a lifelong commitment, as it is today – perhaps it will be signalled more as a time-limited arrangement that can be ended at will.

“It is interesting that, in my law firm, I am now hearing the phrase “My current partner” coming into usage.”

Protection for co-habitees

Wera Hobhouse urged the Government to also do more to improve the legal rights of co-habitees.

She said: “There is much more that can be done to bring our marriage laws into the 21st century.

“We must recognise that marriage and civil partnerships are not for everyone, and that young people who do get married are doing so later and later. Our legal system needs to catch up with society, in which millions of couples choose to live together without making a formal commitment.

“The Law Commission suggests granting essential but limited legal rights to couples who have lived together for at least three years. Such legislation would complement the new divorce, dissolution and separation laws.  I urge the Minister to take another look at that proposal.”

Verbatim report of this week’s second reading in the House of Commons

What you need to know about divorce law changes

The Government has announced its intention to overhaul the UK’s divorce laws, which have been in effect for almost half a century. Here’s a Q&A on what’s proposed.

What are the main changes?

In the future, divorcing spouses will only be required to make a statement that the marriage has irretrievably broken down. This is instead of the situation now where evidence has to be provided on behaviour or separation and the court rule on whether it’s satisfied the marriage has broken down irretrievably.

Why are the changes being introduced?

The laws were described as archaic and outdated by campaigners. They do not believe a spouse should have to prove someone is to blame for the marriage irretrievably breaking down. The belief is that often couples simply grow apart and they should be allowed to separate through a ‘no fault’ divorce.

What are seen as the major advantages?

Reformers are most concerned with how divorce can affect children. The current system leaves parting couples to apportion blame, often resulting in increased animosity and tension. This can not only impact children but also make it harder for ex-partners to develop positive co-parenting relationships.

Will a partner still be able to defend a divorce application?

No. Ministers have decided that as it takes both spouses to save a marriage, allowing one to contest a divorce is of no use. The Ministry of Justice said the practice should be scrapped as it can be misused by abusers to continue coercive and controlling behaviour.

Will getting divorced be a quick process?

A minimum timeframe of six months from petition to a divorce being finalised will be introduced. The current two-step legal process, known as decree nisi (a court order stating when the marriage will end) and decree absolute (when the marriage legally ends), will stay in place.
However, it will take a minimum of 20 weeks to go from the petition stage to decree nisi and six weeks from there to decree absolute.
At the end of this period the applicant will have to affirm their decision to seek a divorce.

Why has the Government acted now?

It said it would review the laws following the high-profile case of Tini Owens, who the courts ruled would have to stay married until 2020 because her complaints about her husband’s conduct were found not to amount to unreasonable behaviour.
The Government carried out a 12-week consultation last year, receiving more than 3,000 pieces of evidence.

When will the changes come into effect?

Not just yet. The Government has said it will introduce a bill just as soon as the Parliamentary timetable allows. Many have interpreted this as Brexit having an adverse impact on the Government’s time for other business.

What about civil partnerships?

Parallel changes will be made to the law allowing the dissolution of a civil partnership. Currently, civil partnerships of more than one year must also be proven to have irretrievably broken down.

Read more: Not everyone agrees that all the changes are for the better.


No fault? Not always

Do this week’s widely-approved changes to divorce law risk a potential disservice to one very important section of people?

The Government has announced legislation to overhaul divorce law with the intention of reducing conflict between parties.

The move to ‘no fault’ divorce follows a public consultation in which more than 3,000 interested parties took part.

Proposals would end the need for spouses to evidence at least one of adultery, behaviour, desertion, two years’ separation (if the other spouse consents to divorce), or five years’ separation (if the other spouse disagrees). Instead, one or both parties would provide a statement of irretrievable breakdown.

While the proposals that will update 50-year-old laws have been generally welcomed, they may remove an important part of the healing process for spouses who’ve suffered through their marriages.

Family view

Merrick Life has spoken with two families who’ve recently experienced the divorce process. We heard from them that attributing blame for the marriage breakdown was actually a powerful positive.

‘Malcolm’, who has been supporting a family member through their divorce, said: “There will be many divorces where there is no blame. But when there is behaviour that has led directly to the breakdown of the marriage, then it just feels like an opportunity to voice that is being squashed.

“In so many areas of life we are being told we have to address feelings. It is part of the process of healing to get things out that have happened. The concept of ‘no fault’  flies in the face of that.

“For my family member it’s part of their recovery. It’s making them  feel better. It has made them sit down and think about everything that’s happened and realise it’s not their fault.

“The end result would be the same under a changed law but the journey may be harder. There doesn’t appear to be the opportunity to get all that stuff out and deal with it.”

Client view

A female client also told us: “I think there’s a danger that by trying to make everyone fit under this umbrella you’re saying that what some people have been through is irrelevant, and it can’t be irrelevant.

“If there has been abuse in the relationship then I think the courts should listen sympathetically to that.

“I’m sure ‘no fault’ will be fine for many couples but for me it would have been a disaster. I had to summon every ounce of courage and energy to seek a divorce. The abuse I suffered was not just verbal and physical but also financial.”

“If everything is ‘no fault’ for those like me it is not true, it’s not realistic.”

Government view

The Government admitted that for some being able to blame their partner for the breakdown was a cathartic experience.

The report says: ‘Some thought that ending the availability of conduct-based facts would remove the right of “innocent” parties to name the “guilty” party.

‘The role of the court, however, is not to adjudicate on who was at fault for the breakdown of the marriage, only to satisfy itself that the legal threshold of irretrievable breakdown is established.

It later adds: ‘We appreciate that some respondents believed that parties who were “wronged”, as they saw it, should have an opportunity to set this out by using a conduct-based fact. But we also heard arguments from groups representing victims of domestic abuse that – on balance, given the limited legal effect of this and its risk of heightening conflict – this is unnecessary as part of the process of obtaining a divorce.’

Merrick view

Merrick principal Amanda Merrick welcomed several aspects of the proposed changes, including reducing time limits for a separation with or without the other party’s consent.

But she added: “There are, of course, couples for whom no-fault would be the preferred route. For some people though, such as those who have been in an abusive relationship, assigning fault or blame to the other party is empowering; very often the start of their healing process.

“Divorce reform should therefore be about creating options. It shouldn’t be about making it the same for everyone no matter what experiences have brought them to this point.

“Few, if any, undertake divorce lightly and for those who have suffered the petition is often the first step towards re-finding their voice and being heard; it is the start of a journey to move away from the past towards a better future  .”

Justice Secretary David Gauke said new legislation will be introduced to Parliament ‘as soon as parliamentary time allows’.

There’s a summary of what’s proposed here and you can read the Government’s response to the consultation here.




Never a bad day to seek legal advice

The start of a new year is often a time for review and reassessment.

The break from the regular routine over the festive period gives many the time to ponder their life and their priorities. Spending long uninterrupted periods with family can unfortunately bring to the fore issues that remain hidden at other times of the year.

And some in failing relationships resolve to act.

As such, the first working Monday of the new year has become labelled ‘divorce day’ by the media. Many in the legal profession are keen to distance themselves from the negative connotations of this.

Our view is quite simple. If your relationship is in trouble, whether it’s the first day of a new year or the last day of the old one, there’s never a bad time to seek out professional legal advice.

Amanda Merrick said for an individual contemplating divorce or just wanting to know what their options might be – it is important they empower themselves with information and take legal advice as soon as possible.

She said many clients attend a first appointment having mistakenly pre-determined that separation will leave them homeless, financially adrift or never able to see their children.

In most cases none of these propositions bear any resemblance to what actually happens.

Primary concerns

Put simply – having enough money to live and the future of any children are primary concerns in most break ups.

Amanda said: “It can be worth considering some form of counselling. Or, if there is a specific issue, another dispute resolution service, such as mediation.

“Relate is, perhaps, the best-known provider of counselling services for couples. But the NHS offers a similar service if one – or both partners – has a mental health problem, such as depression, that is affecting the relationship.”

But Amanda also urges people to prepare themselves if the relationship is beyond this point.

She said: “It’s never easy trying to establish a co-parenting relationship whilst in the throes of a separation. But if you have children that’s what you must strive to achieve for their benefit as soon as possible.

“The family court has wide-ranging powers to deal with children issues, but it cannot resolve any emotional stuff between the two of you caused by the relationship breakdown. Try not to lose sight of the real objective – damage limitation for your children.

“Whatever forum you use to resolve any financial issues, a full and frank exchange of information is likely to be required going back at least 12 months.

“Draw up as soon as possible a list of everything you know about your other half’s financial circumstances. Also making a start on getting all your relevant paperwork together helps to ground you in the facts.

“This can be particularly helpful should emotions subsequently take over and cloud your recollections.”

Want to know more about how Merrick can help? Click here.




Without divorce support I could have lost my child

One mum’s divorce process experience and how she was helped by Merrick’s #AccessUs initiative which makes legal advice affordable for those on limited incomes

“I’d never been in a position where I could afford a solicitor, which is why four years on from separating I’d not actually started the divorce.

“I’d taken on the house and debts so there was very little extra cash at the end of the month.

Divorce solicitor

“I had spoken to a solicitor locally and been charged £80 for a basic 20-minute consultation and I thought after ‘how am I going to be able to afford this?’

“But things were getting pretty contentious. I needed to get a resolution.

“I needed to be able to stand up for myself and I finally did and that was only with the support of Merrick, I wouldn’t have to been able to do it otherwise.

“It was my boss who recommended I talk to Amanda. She was very personable, very friendly but super professional. She went through everything on the phone and said Merrick had an initiative for which I qualified and where the charges would be in line with legal aid rates.

“That was music to my ears. I knew I could manage that.

Eventually I would have backed down

“Without this I would have been in the position where I was backed into a corner and gone along with what was said. I get quite emotional about it all and I think eventually I would have backed down.

“I don’t think I could have represented myself, I find the whole process quite intimidating. I’ve had to go to court and it really makes me anxious. Without representation I don’t think I would have done it.

“I could have been in a position where – as dramatic as it sounds – I could have lost my child.

“I would have had to give in because without #AccessUs financially I couldn’t have fought it and I can’t represent myself in that kind of situation.

“You still get access to proper legal advice from a qualified divorce solicitor. It’s been amazing to have that.

“To go into that court situation where I felt immediately intimidated and terrified and to have someone sat there speaking for me was just an absolute godsend. I couldn’t have got through it without them.

“It’s like having a friend on the end of the phone. They have really helped me through.

“I don’t know how people represent themselves now there is such limited access to Legal Aid. How you would go through this without some access to legal support?

I couldn’t have seen a future

“I just look at what it could have been like. Things could have been completely different and so much worse. We are coming out of it now and things are normalising.

“I couldn’t have seen a future without the support Amanda and Gabrielle have given me, so I’m very grateful for everything they’ve done. I’ve not got any fear of the process now because I’ve got good people on my side and I can manage it.”

“If you leave it to hang over you, it’s never going to get resolved. It’s just always that issue that you can never move on from.

“I’ve moved forward a hell of a lot. I feel a lot more confident in myself and a lot happier with the direction things are going. The future doesn’t look so bleak to me.”

Read more about #AccessUs

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